Wednesday, September 16, 2015

There was a time when the Senate would sleep from one election to the next. Although it has the same legal authority as the House of Commons (except that it can’t introduce money bills), its non-elected status means it has little moral authority to interfere with the elected House.

Or so you might think.

In its early years, the Senate was still active in amending bills; that role faded when the Liberals came to dominate the chamber in the mid-20th century. The Senate briefly woke from its long slumber after Brian Mulroney became prime minister in September 1984. In early 1985, during Mulroney’s political honeymoon period, the Senate’s Liberal majority delayed a borrowing bill (it was a parliamentary issue — governments are supposed to table spending estimates before raising money).

This action was widely viewed as impudent meddling by the remnant of a discredited ancien régime, and it drew hostile reactions from government representatives, pundits and members of the public. An angry Prime Minister Mulroney threatened to launch a constitutional amendment to strip the Senate of almost all its powers (he backed off, eventually).

The Liberal Senate House leader who provoked Mulroney’s ire was former Trudeau minister Allan MacEachen. At the time I was putting together a documentary on the Senate for the CBC centred on this episode, and I followed the issue closely. MacEachen was a legendary political character — a wily House of Commons tactician and a key cabinet minister in the governments of Lester Pearson and Pierre Trudeau. When we interviewed MacEachen for the documentary I got a strong impression of someone who had been publicly humiliated — and who was unlikely to forget the experience.

MacEachen did not have long to wait for an opening; the Mulroney honeymoon was over by early 1986. The Liberal-controlled Senate began to hold up bills on a wide variety of topics: transportation, drug patents, refugees, copyright and energy incentives. My impression was that MacEachen applied pressure on measures where there was public support for the Liberal position, and where Liberal MPs gave their consent for the Senate caucus to act.

This amounted to a non-constitutional — but very real — change in the Senate’s role. A Senate controlled by partisan opponents of the government can bide its time for a while after an election, read the polls and pick the right moment to oppose the government on issues where it has the public is on its side. It’s a recipe for periodic deadlock.

The most notable development in the mid-1980s came when the Liberal Senate refused to proceed with legislation authorizing the U.S.-Canada Free Trade Agreement until after a federal election. The Progressive Conservatives did go on to win the 1988 election and the Senate passed the deal — but confrontation between the chambers didn’t end there. In autumn 1990, the Senate started holding up the legislation to create the GST.

The Liberal grip on the Senate was suddenly broken when Brian Mulroney used an arcane constitutional provision that let him appoint eight extra senators, two for each region, bringing the PCs a majority.

The new Progressive Conservative majority in the Senate did not forget their party’s treatment at the hands of the Liberals. When the Chrétien Liberal majority swept into office in late 1993, Conservative senators didn’t hesitate to exercise their authority.

Early on, the Conservative Senate blocked Liberal legislation that would have cancelled the Mulroney government’s initiative to privatize the Pearson airport. They held up the bill for several years; the issue only died when the government reached a compensation agreement with the Pearson airport developers. The Tory majority also blocked a Liberal bill to suspend and change a redistribution of seats in the House of Commons then underway, and delayed several other pieces of legislation.

The Harper period has been somewhat different. The Conservatives had a majority in the Senate by the end of 2010, before they won a majority in the House of Commons. Prior to gaining full control of the chamber the Senate Conservatives, using a procedural manoeuvre, killed an NDP climate change bill supported by the Liberals. The bill had been pushed through the House of Commons over the objections of the minority Conservative government.

Even if the NDP was willing to fill all 22 vacancies in the Senate (it says it won’t but, eventually, it might be forced to do so by the Supreme Court), it would be many years before the party could achieve a Senate majority. The same problem would not face the Liberals. Just by filling existing vacancies a Liberal government would regain effective control of the Senate. In the late 1980s and early 1990s, Senates controlled by the opposition showed how it could thumb its nose from time to time at the elected House of Commons. It could happen again.

The current Senate is likely to feel some restraint in the short run, given its tarnished reputation. But that won’t last. Simple hostility on the part of a chamber controlled by Conservatives and Senate Liberals could create legislative gridlock and an unprecedented legitimacy crisis for Parliament.

That might fuel the NDP’s push to abolish the Senate — but unanimous provincial approval isn’t likely any time soon. If there is a Thomas Mulcair government, expect to see at least a new version of the selective delays and vetoes that bedevilled Brian Mulroney and Jean Chrétien in the last century.